409 F.

2d 983

UNITED STATES of America, Appellee,

v.
Colin Emanuel McKENZIE, Appellant.
No. 430, Docket 32105.

United States Court of Appeals Second Circuit.

Argued March 11, 1969.
Decided March 28, 1969.

Lawrence W. Kessler, New York City (Milton Adler, New York City, on
the brief), for appellant.
John R. Wing, Asst. U.S. Atty., New York City (Robert M. Morgenthau,
U.S. Atty., for Southern Dist. of New York, John H. Doyle, III, Asst. U.S.
Atty., on the brief), for appellee.
Before MOORE, KAUFMAN and FEINBERG, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:

Colin McKenzie was convicted in the United States District Court for the
Southern District of New York, after a jury trial, upon a one count indictment
which charged that on or about October 6, 1967, he 'unlawfully, wilfully and
knowingly did forcibly assault, resist, oppose, impede, intimidate and interfere
with' two federal Immigraion Officers while they were attempting to arrest him
in the course of their official duties, all in violation of 18 U.S.C. 111 and 1114.1
The trial judge suspended the imposition of sentence and placed McKenzie on
probation for a period of one year on condition that he comply with all orders
and directions of the Immigration and Naturalization Service. Subsequently, on
December 29, 1967, he was deported to British Honduras, where he is presently
residing. McKenzie appeals from the judgment of conviction, claiming that the
trial court's charge to the jury was erroneous. We affirm the judgment.

The appellant is a twenty-one year old citizen of British Honduras. He entered

the United States in 1964 on a student visa which was to be valid for four years
if annually renewed. After completing his first year of study at the RCA

Institute, McKenzie renewed his visa for the 1965-66 academic year, but
because of financial difficulties he abandoned his schooling early in the
following year and sought employment. When this occurred McKenzie knew
he 'had no right to stay here any more.' On October 6, 1967, when he was
apprehended by the immigration officers, McKenzie was working at the
Saunders Formal Wear Company in New York City pseudonymously as
Emanuel Young.
3

The account given at the time by immigration officers Meyer and Rufft of the
events giving rise to the conviction differed considerably from McKenzie's
version. Meyer testified that he and Rufft entered the Saunders Formal Wear
premises and spoke with the man in charge, Vincent Pissaro, who led them into
the stock room. While Rufft waited at the exit, Pissaro pointed out McKenzie
to Meyer. According to Meyer, he showed McKenzie his shield, identification
card, and an arrest warrant, saying at the same time that he was an immigration
officer and that McKenzie was under arrest. To this McKenzie's response was 'I
don't know what you are talking about.' He then brushed past Meyer and
walked away. When Meyer pursued and again sought to arrest him, McKenzie
said he had to go to the bathroom, knocked the warrant out of his hand, and fled
around a corner towards an exit, where he was intercepted by Rufft. A struggle
ensued, with McKenzie insisting that he had to go to the bathroom, while
Meyer, having brought out his handcuffs, attempted to put them on him and
Rufft held him in a head lock. After a struggle lasting about five minutes,
McKenzie was finally subdued. Rufft testified similarly as to the circumstances
of the struggle.

McKenzie's version differed. He testified that as he was on his way to the

lavatory he encountered Meyer, who stated 'I want to talk to you,' but that he
was given no indication of Meyer's identity. McKenzie said he merely
continued on the way toward his destination when Rufft jumped on him and
choked him, while Meyer drew out his handcuffs. McKenzie insisted at the
trial that he had not known the men were federal officers until Meyer drew out
his handcuffs, and that at that time he continued to struggle to get Rufft's arm
away from his throat.

We should note at the outset that McKenzie's contention that he was convicted
of the 'resist' rather than 'assault' provisions of 111 is correct. Thus, in his
summation to the jury, the United States Attorey specifically abandoned any
claim that McKenzie was guilty of assault.2 And the trial judge effectively
precluded the jury from considering the possibility that McKenzie had
committed an assault when in reading the statute and the indictment to the jury
and in defining their terms he omitted any reference to the assault provisions.

Moreover, the communication from the jury after its deliberations were under
way requesting a redefinition of 'resisting arrest' and the judge's response
conclusively foreclosed any consideration of assault.
6

In charging the jury on the elements of the crime of resisting arrest under 111,
the trial judge instructed that in order to convict, the jury must find with respect
to scienter:

'that the defendant committed this act unlawfully, wilfully, and knowingly.3
The government is not required to prove that the defendant knew that the
person resisted, opposed, impeded, or interfered with was a federal officer.'

McKenzie's sole contention, raised for the first time on appeal, is that this
charge was fundamentally erroneous because it failed to instruct that although
the defendant need not know that the person resisted is a federal officer, he
must know that the person is an officer of the law. McKenzie argues that 111 is
essentially a jurisdictional statute. It provides a federal forum for the common
law crimes of assault and resisting arrest in cases where the victim is a federal
officer. Traditionally, he urges, knowledge of the identity of the one assaulted
is not necessary; one takes one's assaultee as one finds him. Hence, one
commits a federal crime by assaulting a federal officer if he intends to commit
the assault, though he has no knowledge that the victim is an officer or a federal
officer. In contrast, he contends, the crime of resisting arrest traditionally
requires that the defendant know the person resisted is a law enforcement
agent.4 Therefore, McKenzie submits, in order to commit the crime of resisting
under 111, the defendant similarly must be aware that he is resisting an officer
of the law, although he need not realize the officer is a federal agent.

Had this argument been properly presented in the trial court, we would not be
inclined to dismiss it as devoid of merit. Although there is language in some
cases to the effect that knowledge of the identity of the person acted against is
not necessary for a violation of 111, e.g., United States v. Montanaro, 362 F.2d
527 (2d Cir.) (per Curiam), cert. denied 385 U.S. 920, 87 S.Ct. 233, 17 L.Ed.2d
144 (1966); United States v. Lombardozzi, 335 F.2d 414, 10 A.L.R.3d 826 (2d
Cir.), cert. denied 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964); Bennett
v. United States, 285 F.2d 567 (5th Cir.), cert. denied 366 U.S. 911, 81 S.Ct.
1087, 6 L.Ed.2d 236 (1961), those cases are not apposite for all involved
crimes of assault rather than resistance. We believe the rule urged by
McKenzie, and adopted by the Sixth Circuit in United States v. Rybicki, 403
F.2d 599 (1968), has much to commend it. See also Burke v. United States, 400
F.2d 866 (5th Cir. 1968); United States v. Heliczer, 373 F.2d 241, 248 (2d
Cir.), cert. denied 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967); United

States v. Wallace, 368 F.2d 537, 538 (4th Cir. 1966).

10

In view of the proceedings in the trial court, however, we do not believe it

appropriate to consider the court's omission as 'plain error,' see Rule 52(b)
F.R.Crim.P., and to reverse on this ground. The record reveals that McKenzie's
trial counsel did not merely fail to request an instruction on scienter or to take
exception to the court's charge. We might feel at liberty to notice the error
nevertheless were that all that was before us. E.g., United States v. Rybicki,
supra; United States v. Pugliese, 346 F.2d 861 (2d Cir. 1965). But here, as
distinguished from Rybicki and Pugliese, it is clear that the omission was the
result of counsel's deliberate tactical decision to present the case on a different
theory. Thus, in his opening to the jury, counsel conceded that officers Meyer
and Rufft had identified themselves as federal agents when they first
approached McKenzie. Counsel's theory was that although McKenzie had
resisted arrest, his action was not wilful because he had gotten 'frightened, got
scared' when he realized that he law had caught up with him. In counsel's
words: 'He did this because he got excited and * * * because he was also
attempting to go to the bathroom.'5 Thus, not only did counsel fail to apprise the
court of the issue now sought to be raised, so that it might have, and probably
would have been developed and dealt with properly at that time, United States
v. D'Amico, 408 F.2d 331 (2d Cir. decided February 20, 1969) (per curiam);
United States v. Gitlitz, 368 F.2d 501 (2d Cir. 1966); United States v.
Indiviglio, 352 F.2d 276 (2d Cir. 1965), cert. denied 383 U.S. 907, 86 S.Ct.
887, 15 L.Ed.2d 663 (1966), but he actually led the court to believe that it need
not be considered at all. Absent any claim that counsel was incompetent, which
has not even been suggested in this case, we believe that McKenzie must be
bound by the tactical choice-- wise if it had been successful, unwise when not,
as in most every criminal case-- to present the case to the jury on a different
theory. See Henry v. Mississippi, 379 U.S. 443, 450-451, 85 S.Ct. 564, 13
L.Ed.2d 408 (1965).

11

Finally, we note that although McKenzie Kenzie testified that officers Meyer
and Rufft had not identified themselves initially, he admitted that he realized
they were law enforcement officers when Meyer pulled out his handcuffs. It is
undisputed that the greater part of the struggle which constituted the resistance
occurred after the handcuffs came into view. This admission itself undoubtedly
fortified McKenzie's counsel in pursuing the trial tactic which he did on the
issue of scienter.

12

We believe this record precludes us from recognizing McKenzie's claim of

error at this late date.

13

Affirmed.

14

MOORE, Circuit Judge (concurring in the result):

15

I concur in the result. In the light of our decisions in United States v.

Montanaro, 362 F.2d 527, cert. denied 385 U.S. 920, 87 S.Ct. 233, 17 L.Ed.2d
144 (1966) and United States v. Lombardozzi, 335 F.2d 414, cert. denied 379
U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964), I do not find any omission of an
essential element in the trial court's charge. Nor do I regard United States v.
Rybicki, 403 F.2d 599 (6th Cir. 1968) as stating a rule at variance with out
decisions. In Rybicki reversible error was found in the trial court's failure to
charge that 'an element of the crime charged to Rybicki was knowledge that the
Internal Revenue agents were such and were engaged in performing their duty.'
The court did not instruct that 'Rybicki had to know that the men were officers
and were in the performance of their duties.'

16

Here, however, after reading the indictment, which alleged, in part, that
defendant knowingly resisted immigration officers in the performance of their
duties, there were specified five essential elements which concluded with the
defendant's 'committing this act (resisting immigration officers) unlawfully,
wilfully and knowingly.' The only qualification which the court made as to
knowledge was that the government did not have to prove that the defendant
knew that the person resisted was 'a federal officer.'

17

Therefore, I cannot join in any statement, even though it be dictum, in the

majority opinion that there is a Rybicki rule which 'has much to commend it'
because the deficiency in the Rybicki charge is not found here.

18 U.S.C. 111 provides in part:

'Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes
with any person designated in section 1114 of this title while engaged in or on
account of the performance of his official duties, shall be fined not more than
$5,000 or imprisoned not more than three years, or both.'
And 1114 includes in the list of federal officers so protected 'any immigration
officer.'

'In any event, at that time I said in the opening basically this was a resisting
arrest (case) and that's exactly what it is. I would submit that the evidence

shows that there was a technical assault as well as all the other crimes charged
but I think that in considering the case you should direct your attention to
whether or not there was a forcible resist or arrest
'We are not contending this was a wild, bloody melee. It is just a resisting
arrest.
3

The trial judge further defined these terms as follows:

'An act is done 'knowingly' if it is done voluntarily and purposefully and not
because of mistake, accident, mere negligence, or other innocent reason.
'An act is 'wilful' if it is done knowingly and deliberately.
"Unlawfully,' of course, means contrary to law; hence, to do an act unlawfully
means to do something which the law prohibits.
'In determining whether a defendant has acted knowingly and wilfully it is not
necessary for the government to establish that the defendant knew that he was
breaking any particular law or any particular rule.'

See, e.g., City of Seattle v. Gordon, 54 Wash.2d 516, 342 P.2d 604 (1959);
People v. Galick, 11 Misc.2d 961, 176 N.Y.S.2d 479 (1958)

Thus, counsel stated:

'Mr. McKenzie will take the stand and he will testify that on October 6, 1967
two immigration officers did come to the place where he was employed, that he
was on his way to the bathroom, that they did identify themselves as
immigration officers, they told him to stop. Mr. McKenzie got frightened, got
scared; he had to go to the bathroom, he had an altercation with one of the
immigration officers, and he will tell you whether he resisted or not-- it is not
too clear to me-- he may have pushed the immigration officer or scratched him,
but he will testify that he did not do this wilfully and he did not do it
intentionally. He did this because he got excited and that he did this because he
was also attempting to go to the bathroom.'